DOUBLE JEOPARDY IT AIN'T

Entrapment and Double Jeopardy are two of the most misunderstood (by the public) and misapplied (by lawyers) issues in criminal law.

In the Clemens case, Mike Attanasio and Rusty Hardin, both high-powered attorneys, had to know this was never a double jeopardy case. The double jeopardy rule holds that a criminal defendant cannot be tried twice for the same crime. In this case, the trial ended in a mistrial shortly after it began. In effect that means Clemens had not really been tried on the charges filed against him. Thus, no double jeopardy. Attanasio and Hardin must have thought they had a mullet for a judge.

ROGER CLEMENS ORDERED TO FACE TRIAL AGAIN
By John Royal

Houston Press Hair Balls
September 2, 2011

In a not too surprising development, U.S. District Court Judge Reginald Walton ruled earlier this afternoon, after a morning of oral arguments, that double jeopardy did not attach during the aborted Roger Clemens trial earlier this summer. As a result, the government will get another shot at Roger Clemens next year.

The mistrial was declared this summer when the prosecution showed evidence involving the wife of Andy Pettitte, Laura Pettitte, to the jury during the early stages of the trial. Judge Walton had declared during pretrial that the evidence, her affidavit claiming that Andy had told her of Clemens's HGH confession, would not be allowed before the jury, and could not be discussed. But while showing clips of Clemens's congressional testimony, her name was mentioned and the video frozen on a quote from the affidavit. At which point, the judge decided the jury had been tainted and declared a mistrial.

The Clemens legal team, led today by Mike Attanasio, argued that this was an intentional act by the prosecution, and that because of the principle of double jeopardy -- stating that one person cannot be tried for the same crime twice -- the mistrial meant that there could be no retrial. The prosecution argued that this was an unintentional error and that because it was unintentional, double jeopardy should not attach and a retrial was proper.

Judge Walton continued lecturing the prosecution attorneys throughout today's hearings, but ultimately ruled that this was an unintentional error. As such, and because Attanasio has another trial coming, he set the retrial for April 17.

Rusty Hardin, who was present and is still the lead attorney for Clemens, said they had yet to decide on whether to appeal the decision, though they do have that right, and though this seems to be a near certainty. If there is an appeal, the retrial may end up being over a year or more away. So we still have a long wait ahead until Clemens gets another chance to clear his name because Judge Walton has placed a gag order on all parties.

Hopefully the prosecution learned from their mistake, and there will be no more delays because of their acts. But this is just, in many ways, a failure of the government's steroids trials, just going up there with the disaster the Barry Bonds trial ultimately turned out to be.